Criticisms and Recommendations from Law Reform Experts

Criticisms and Recommendations from Law Reform Experts

The first red flag that has alarmed the Indonesian law reform community is the apparent secrecy and speed with which legislators have moved with regards to the omnibus laws; not too long ago, student demonstrators rocked a number of Indonesian capital cities to protest a number of DPR’s problematic laws, and that nuance of problematic lawmaking is something that the Government should attempt to avoid, by ensuring that steps are taken to make sure that public participation is done in a correct manner.

Law reform experts have a number of specific criticisms in regards the Government’s apparent pre-occupation with easing investment, potentially at the cost of upending prevailing rules and regulations, the Center for Law and Policy Studies (Pusat Studi Hukum dan Kebijakan, “PSHK”) is especially critical of the way the omnibus law approach has been adopted by the Government in order to improve employment conditions and stimulate small to medium enterprises, because the lack of public participation in this approach is indicative that the Government and legislators are prioritizing ease of investment over other principles, namely principles important for democracy such as protecting human rights, anti-corruption, ally-ship with marginalized groups, and environmental conservation, which all need to be considered at every step of any lawmaking process. At the very least, the omnibus law approach should be carried out by the Government’s planners and lawmakers in a manner compliant with the Law on Formation of Legislation, which among other things must involve appropriate public participation. Merely announcing such legislative plans does not make a strong good faith impression that public participation is high on the Government’s list; instead, lawmakers should initiate discussions with the public, especially law reform experts of known track records and integrity, and if this is not done, then President Jokowi’s regime should urge DPR to do so.

Another point raised by PSHK and other law reform-oriented organizations is that law reform experts are somewhat excited at the prospect of Indonesia taking the omnibus law approach in an appropriate and serious manner. As an instrument of lawmaking, it is neutral and should be apolitical, and therefore could be used in the ideal manner of addressing various legal products in one legal document in order to achieve a particular social goal. This is a challenge that the Government and DPR should attempt to surmount with the utmost care and integrity. The public should demand that the Government and DPR provide such safeguards in its approach to use omnibus law. These safeguards should ensure that the objectives of omnibus laws shall remain only amendments, revocations, or enactment of facts that are related, but separated under various legislations, in order to ensure that the simplification and efficiency goals of omnibus laws are maintained. Even then, the process should also include safeguards that ensure that the rider problem does not occur, that is, to avoid omnibus laws being used in order to ‘smuggle’ unpopular provisions in a massive list of popular ones. In order to be able to make such effective safeguards, both the Government and DPR will need to carry out relevant regulatory mapping, both vertical and horizontal, considering the philosophical and sociological basis of all revised laws that are targeted by the omnibus laws, revoking all existing provisions that are in conflict with it, while being in full compliance with the Law on Formation of Regulation. Only with such safeguards can the omnibus law approach respect the vital importance of legal certainty in Indonesia.

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